While getting married and having kids is great, and relatively straightforward from a legal perspective, life doesn’t always go that smoothly. Sometimes the kids come before marriage, whether from a prior relationship or through adoption. So what does that mean for you if you’re about to become the newest addition to an existing family?

Marrying someone who has already adopted a child can be especially tricky. How tricky depends on a variety of factors:

The child’s age now

The child’s age when they were adopted

Their history before they were adopted

Whether they had a closed adoption

The Child’s Age Now

As with any other adoption, if the child is of a certain age, they have a say in whether they want to be adopted by their new step-parent. If the child does not want to be adopted by you, for any reason, then the adoption can’t move forward. That can be painful, but it’s important to respect their wishes and try to work through any existing issues that may have contributed to that decision.

The Child’s History

The child’s age and their history at the time they were adopted can also be important factors in whether they want to add a legal parent. While some children are adopted very young, and thus have never known any other family, others have lost their biological parents and/or been through the foster system. That can make it hard for the child to learn to put down roots and to trust that people are going to stick around for the long haul. For that reason, offering to adopt them can be a beautiful way to show your commitment, not just to your future spouse, but to their children. At the same time, it could also mean the child is not comfortable being adopted by anyone else, in which case it’s important not to force anything on them, even if they’re not yet of age to have a say.

Whether They Had a Closed Adoption

A closed adoption is when the identities of the birth parents and the adopted parents are not known to each other, in which case adopting your step-child could be fairly straightforward, assuming all parties are on board with the idea. But when the birth parents are still in the picture, it can make things tricky.

There are a variety of reasons this might happen. Your future spouse may personally know and/or be related to their child’s birth parents, but decided to adopt for the good of the child. It could be the biological parents were not ready to have a child and your future spouse was; or the biological parents may have been neglectful or even abusive, and your future spouse stepped up by adopting the child for his or her own good.

In any case, although they do not have legal rights to the child, if the biological parents are still in the picture, they may place some emotional pressure on the situation by expressing their disapproval. They won’t have the ability to formally object in Court, since they are no longer their child’s legal parent, but you may want to take their opinion into consideration to help things go smoothly, especially if the child has any sort of relationship with their biological parents.

Your Future Spouse’s View

Ultimately, it is your future spouse has the final say in all this, and he/she may or may not want you to adopt their child. No matter how well things are going between you two, their first obligation is to look after the best interests of their child. The tougher the child’s history, the more protective the adopted parent is likely to be of them. If your future spouse doesn’t want you to adopt, don’t take it personally. Just do your best to be an active member of the family, as a child can never have too much love.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests.

For the most part, adopting a stepchild is much like adopting any other child. In fact, sometimes the process can be expedited since the child and your spouse are related.

But the biggest difference between adopting a stepchild and any other adoption can often be the biggest hurdle to overcome: you need permission from the child’s other parent (provided they’re still living), and granting that permission requires them to give up all their parental rights. It’s easy to understand why it might be difficult to convince a parent to give that up.

On the other hand, giving up all parental rights also means giving up all responsibilities, including child support. If the other parent does not have a strong relationship with their child, they may even welcome an opportunity to stop making those payments.

In some cases, the other parent may recognize that surrendering their parental rights so the child can be adopted by the stepparent is in the best interests of the child, in which case they’ll be more likely to provide their consent. In order to voluntarily surrender their parental rights, the other parent will need to sign appropriate Court documents to surrender their rights and attest that they understand what they are doing in front of a Judge before the adoption can proceed.

If the other parent refuses to give up their parental responsibilities, and you can provide evidence that they are an unfit parent, you can have their parental rights terminated. It’s an extreme measure and it requires being able to meet a very high burden of proof. There are several bases to claim unfitness, but the more common issues that arise are abandonment, physical abuse or neglect, and/or significant drug use.

In order to prove abandonment, you must be able to demonstrate that the other parent has not communicated with the child, by no fault of your own, and they also provided financial support for the child for a defined length of time. In many cases, the Judge will want to see that the parent has been out of touch for at least several years, even if the statutory duration is a shorter period.

If you accuse the other parent of being an unfit parent, most courts will respond by conducting a fitness hearing, which it will use to determine whether the other parent has been abusive, neglectful, incarcerated, suffers from an addiction, or fails to visit the child. If parental rights are terminated, the Court can move on to the secondary issue of whether the adoption will be granted, which is a separate proceeding.

As explained above, obtaining the permission of the other parent (or having them deemed an unfit parent by the prevailing court) is just the first step. Once the Petition for Adoption is filed, the Court will also be appointing a Guardian Ad Litem to investigate the facts of the case and make a recommendation to the Court on whether or not the adoption is in the best interest of the child. The GAL also has very specific duties under the statute, and everything about the adoptions process must strictly adhere to the applicable laws. If it strays in any way, it could subject the adoption to being overturned later down the road, which could cause a lot of distress and/or damage for the child.

The basic takeaway from adoption law in Illinois is that you really need to have an experienced attorney handling these proceedings for you. There are several factors at play and procedures to complete, even for an “uncontested” adoption where one parent is agreeing to terminate his/her rights.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests.